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Was he or wasn’t he…? The curious case of the Fraziers of Virginia.

Reader Wendy Mathias has an intriguing ancestor who poses an interesting question. This particular character — and character he was!1 — was known at times as Leland Shiflett and at other times as Leland Frazier. Wendy knows his mother was Lucy Shiflett and that Lucy married John Frazier several years after Leland was born. The theory is that John Frazier was Leland’s father.

One key clue is the fact that, in November of 1844, John Frazier executed a deed in Greene County, Virginia, for roughly 200 acres of land. The deed recited that it was “for and in consideration of the natural love and affection which he has and bears for … Leland Frazier, Lively Morris, Burton Shifflet, John H. Frazier, Michael Frazier, William Frazier, Shadrick Frazier, Susan Frazier and Mery W. Frazier and of one dollar of lawful money of this commonwealth.”2 Lively Morris and Burton Shiflett were sons-in-law. All of the Fraziers except Leland were legitimate.

So Wendy needs to know what the phrase “natural love and affection” means in this deed. In particular, she asks: “Does that expression indicate Leland was IN FACT his son or simply that he CLAIMS him as a son? How much importance is attached to that expression?”

You’ll forgive me, I hope, for starting out by saying that when it comes to paternity, there’s only so much the law can tell us. I mean, seriously, the only way any of us are going to know whether Leland was in fact John’s son is to do Y-DNA testing on documented male descendants of both. And even then we could have an undocumented, um, “paternity event”…

Reading Eagle, 3 Mar 1916

But putting aside the question of just how much mama was playin’ around here, the phrase — considered “antique” by 1916, as this Reading (Pa.) Eagle clipping shows3 — was very important … but by itself isn’t enough to answer the question.

Let’s start with the whole notion of property. Then as now, land was the big ticket item in somebody’s life. Owning land made you wealthy. If you fell into debt, the first thing the creditors came after was your land. After all, you couldn’t run away with the land or use it up or spend it before your creditors could get their hands on it. And just as creditors wanted to get their hands on the debtor’s land, the debtor wanted to protect his land from his creditors.

In steps the Law of Property. Capital letters. One entire volume of Blackstone’s Commentaries on the Law of England was devoted to the law as it related to property4 — particurly real property, or land.5

And then as now, protecting debtors wasn’t a big priority in the law. Protecting creditors was important, as was stopping people from doing foolish things with land, so the law made it hard to give land away. Oh, you could do it, but your creditors could come right along behind you and get the law courts to turn the land over to them.

So to make sure that a land deal was the real thing, and not a ploy to defraud creditors, the law required that, to be legally sufficient to transfer ownership of land, a deed had to be supported by what was called consideration. A deed without any consideration had no effect at all.6

Under the law, there were two kinds of consideration. A valuable consideration was something like money — actual cash or something with a cash value. The exception was that marriage was treated as valuable consideration.7 Alternatively, a good consideration “is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty …”8

So why did deeds like the one by John Frazier list both natural love and affection and some token sum of money, like the one dollar here? Because where the deed had only good consideration, it was “considered as merely voluntary, and … frequently set aside in favour of creditors…”9 Putting in both a valuable consideration (some money) and a good consideration (natural love and affection) was simply hedging your bets.

So what kind of “natural love and affection” was enough to make a deed valid? That’s a little murky. It’s defined as the kind of affection that “naturally subsists between near relatives, as a father and child, brother and sister, husband and wife.”10 A dictionary definition of a relative includes folks related by blood or affinity, and since that includes a relationship between a husband and a blood relative of the wife (and vice versa),11 that could include a stepson.

But there is an extremely telling suggestion in the arguments of the attorneys in the case of Beverley v. Lawson’s Heirs in 1812 that the law of property wasn’t as broad as the dictionary definition of relative. There, the attorneys for one side said, a deed made for consideration of natural love and affection was merely for an “adopted” son who “does not appear to have been related by blood to the donor. The consideration is therefore insufficient to pass a title.” Since that wasn’t the main issue, the Virginia Supreme Court never commented on it. But the attorneys for the other side didn’t disagree on the point that an adopted son wouldn’t qualify. All they said was that the issue of the relationship hadn’t been raised in the trial court and “had it been made in the Court below, we might have proved that, in fact, he was a near relation.”12

Now an adopted son might be treated differently from a stepson, and I’ve personally seen a gift of personal property to a stepson where the bill of sale said it was for natural love and affection. But given the fact that both sets of lawyers here seem to agree that, to be good enough for a deed, “natural love and affection” was limited to kin by blood, it sure looks like land was in a category all by itself. So John’s giving land to Leland supports a conclusion that he had been — or was being — acknowledged by John. The fact that John included the two sons-in-law and they themselves weren’t “near relations” doesn’t change the analysis. Naming them was nothing more than giving the benefit of the land to the daughters — kin by blood — without actually giving land to (gasp) women. In an intact marriage, at that time, That Simply Was Not Done.13

So what have we got here? We have three things that support a conclusion that John thought Leland was his son. First, he used the name Frazier for Leland. No “also known as” reference. No use of the mother’s name. Second, John didn’t differentiate between Leland and the other legitimate children in any way. Those two in combination suggest the third point: John didn’t expect the other children to raise any objections to giving Leland an equal share.

Had he not been acknowledged by John, then even the slightest falling out between Leland and any of the others could have ended up in court with everybody fighting over whether there really was “natural love and affection.” Unless John had a really warped sense of humor, he wouldn’t have set out to create a deed that could so easily end up in a legal dogfight.

What unanswered questions do we have?

First and foremost, what happened to this land? This was a bit of an oddball deed. It didn’t simply transfer the land in equal shares to the children. John also had a $55 debt, with one son and one son-in-law as security. He wrote the deed so that each of the kids had to pay a share of the debt before getting his share of the land. So… did Leland pay his share? Did he actually get any of this land?

Secondly, did any of the others ever contest any land Leland did get? The court records should tell the story on that and — fortunately — Greene County isn’t one of Virginia’s burned counties.14

But remember: even if Leland got land without a fight, there’s still a chance that he got it only because the rest of his mother’s children loved him, whether he was the son of their father or not. And there’s a chance that every last one of them believed he was John’s son — whether he was or not. The language in the deed is evidence that John treated him as his son, but by itself can’t prove he was John’s son.

Bottom line: if you really want to know if Leland was in fact John’s son, you’re gonna need at least two Y-DNA test kits. I can put you in touch with a great testing company…


SOURCES

  1. See Wendy’s wonderful article “Thriller Thursday: All In the Family,” Jollett etc., posted 9 Feb 2012 (http://jollettetc.blogspot.com/2012/02/thriller-thursday-all-in-family.html : accessed 16 Feb 2012).
  2. Greene County, Virginia, Deed Book 2: 403, Frazier to Frazier et al.; Greene County microfilm reel 1; Library of Virginia, Richmond. Transcription by Wendy Mathias.
  3. “Antique Phrasing in Deed at City Hall,” Reading (Pa.) Eagle, 3 March 1916, p. 1, col. 7; digital image, Google News (http://news.google.com : accessed 16 Feb 2012).
  4. Edward Christian, editor, Blackstone’s Commentaries on The Laws of England, Book II: Of the Rights of Things, 15th ed. (London : A. Strahan, 1809); digital images, Google Books (http://books.google.com/ebooks/reader?id=9r1CAAAAYAAJ&printsec=frontcover&output=reader : accessed 15 Feb 2012).
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 997, “real property.”
  6. Blackstone’s Commentaries on the Law of England, Book II: 296-297.
  7. Black, A Dictionary of Law, 255, “consideration.”
  8. Blackstone’s Commentaries on the Law of England, Book II: 297.
  9. Ibid.
  10. Black, A Dictionary of Law, 801, “natural affection.”
  11. Ibid., 49, “affinity.” See also ibid., 1016, “relative.” And see John Bouvier, “A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union,” rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 16 Feb 2012), “relative.”
  12. Beverley v. Lawson’s Heirs, 17 Va. 317 (1812).
  13. See generally Richard Chused, “Married Women’s Property Law: 1800-1850,” 71 Georgetown L.J. (1983): 1359-1425.
  14. See “Greene County Microfilm,” Library of Virginia (http://www.lva.virginia.gov/public/local/results_all.asp?CountyID=VA109 : accessed 16 Feb 2012). See also “Burned Record Counties (VA-NOTES)”, Library of Virginia (http://www.lva.virginia.gov/public/guides/va22_burnedco.htm : accessed 16 Feb 2012).
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